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Edward Gilroy v. Donna Gilroy (N/K/A Donna Courtney Thomas


March 9, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-348-97.

Per curiam.


Submitted February 6, 2012 -

Before Judges Grall and Hoffman.

Plaintiff, Edward Gilroy, appeals from a post-judgment order dated May 4, 2011, denying his motion to vacate a consent order entered into by him and defendant, his former wife, on December 6, 2010. Plaintiff contends that the consent order is void because he was under duress at the time he signed it. We reject this contention, and for the reasons that follow, we affirm.

We briefly set forth the relevant facts. The parties were married on May 31, 1975 and had four children together. They were divorced by way of a dual judgment of divorce and property settlement and separation agreement dated May 18, 2000. The agreement provided for defendant to receive, by way of a Qualified Domestic Relations Order (QDRO), half of plaintiff's retirement benefits acquired during the marriage.

Disputes over the exact wording of the QDRO, as well as other issues, resulted in the filing of numerous post-judgment applications. One such application involved plaintiff's obligation to contribute to college expenses for the parties' youngest daughter. This motion was resolved by a consent order entered on June 28, 2006, which obligated plaintiff to pay defendant the sum of $12,500 on June 30, 2007. Plaintiff failed to make this payment. In September 2010, defendant filed an application to compel plaintiff to pay the $12,500 and to sign the latest version of the QDRO. Plaintiff filed a cross-motion requesting further modifications of the QDRO.

By this time, plaintiff was represented by his third attorney of record. Extensive negotiations between counsel for the parties resulted in an additional consent order, dated December 6, 2010, signed by both parties and both counsel. The order resolved all outstanding issues between the parties, including payment of the $12,500,*fn1 with the exception of the counsel fee issue, which the parties agreed to submit to the court for ruling on the papers. Judge Robert J. Gilson denied both counsel fee requests, without prejudice, but further provided:

If either party fails to comply with the resolution of the issues concerning the Qualified Domestic Relations Order or the claimed $12,500, the other party can submit an application for attorneys fees, including fees sought on this motion, and if one of the parties is found to be in violation of the resolution, an award of reasonable counsel fees will be made.

Following entry of the December 2010 consent order, plaintiff still refused to sign the QDRO. Instead, he filed a motion pro se on April 5, 2011, requesting the court to vacate the consent order on the basis that stress caused by health-related issues of a close friend placed him under such duress that he could not have given valid consent at the time he signed the order. Defendant filed a cross-motion seeking enforcement of the consent order, and counsel fees. By order of May 4, 2011, Judge Gilson denied defendant's motion to vacate the consent order, finding that plaintiff failed to provide evidence that he was under duress at the time he entered into the order. The judge granted defendant's cross-motion to compel plaintiff to sign the QDRO, and for counsel fees. Plaintiff now appeals the denial of his motion.

In his written statement of reasons denying plaintiff's motion, Judge Gilson explained the basis for his ruling:

In this case, plaintiff failed to provide the Court with evidence to demonstrate that he was under duress at the time he entered into the Consent Order. Plaintiff asserted that he was under duress due to health issues concerning an unrelated party to this matter. Importantly, plaintiff never asserted that defendant or her counsel were in any way threatening or attempting to control plaintiff's will. Indeed, the record reflects the opposite. Here, the record reflects that plaintiff was represented by experienced counsel at the time that the parties negotiated and entered into the Consent Order in December 2010. In that regard, plaintiff had over three (3) months to discuss and consider the proposed QDRO and the ramifications of entering into the Consent Order with his counsel. Equally important, both plaintiff and his counsel . . . signed the Consent Order, which included a specific modification of the QDRO proposed by the defendant and her counsel.

Accordingly, based on this record, this court enforced the parties' Consent Order dated December 6, 2010, as plaintiff failed to demonstrate that he was under duress at the time that he entered into the Consent Order.

The record fully supports the judge's reasons for denying plaintiff's motion to vacate the consent order. We further note that at oral argument on the motion, plaintiff did not mention the close friend or her health issues. Instead, he attempted to argue the merits of the motion that was settled by the consent order. The only mention of duress by plaintiff was in relation to his attorney, who strongly urged him to enter into the consent order.

We therefore affirm substantially for the reasons expressed by Judge Gilson in his written statement of reasons dated August 8, 2011, and we add the following brief comments.

We note first that "[s]ettlement agreements in matrimonial matters, being 'essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)). It is axiomatic, however, that without each party's valid consent there can be no contract. See Rubenstein v. Rubenstein, 20 N.J. 359, 365 (1956).

A party who has been "deprived of the exercise of his [or her] free will" by way of "moral compulsion or psychological pressure" cannot provide the consent necessary to enter into a valid contract. Id. at 366. "In determining whether a contracting party is entitled to be absolved from his [or her] contractual obligations due to duress, the court must therefore look to the condition of the mind of the person subjected to coercive measures." Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212 (App. Div. 1987). "The question is whether consent was coerced; that is, was the person complaining 'induced by the duress or undue influence to give his [or her] consent, and would not have done so otherwise.'" Rubenstein, supra, 20 N.J. at 366 (quoting Williston on Contracts § 1604 (rev. ed.)).

The judge's finding that there is no competent evidence of duress to undermine plaintiff's voluntariness in entering the consent order is well supported by the record.

Plaintiff's remaining arguments not specifically addressed in this opinion lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Judge Gilson correctly applied the controlling legal principles and did not mistakenly exercise his discretion in denying plaintiff's motion to set aside the consent order of December 2010. We therefore have no basis to reverse his order of May 4, 2011.


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